24 FLRA No. 9
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1374
Union
and
PACIFIC MISSILE TEST CENTER
Activity
Case No. 0-AR-1185
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on an exception to the award of
Arbitrator Anthony Miller filed by the Union under section 7122(a) of
the Federal Service Labor-Management Regulations Statute and part 2425
of the Authority's Rules and Regulations.
II. BACKGROUND AND ARBITRATOR'S AWARD
A grievance was filed claiming that the decision to contract out
certain fuel service functions failed to comply with applicable
procurement law and regulations including OMB Circular A-76. The
grievance was submitted to arbitration where the threshold issue was
whether the grievance was grievable and arbitrable. The Arbitrator as
his award ruled that the grievance was not arbitrable. In reaching this
determination, he rejected the decisions of the Authority and the U.S.
Court of Appeals for the District of Columbia Circuit in American
Federation of Government Employees, AFL-CIO, National Council of EEOC
Locals and Equal Employment Opportunity Commission, 10 FLRA 3 (1982)
(proposal 1), enforced sub nom. EEOC v. FLRA, 744 F.2d 842 (D.C. Cir.
1984), cert. dismissed, 106 S. Ct. 1678 (1986) (per curiam). Instead,
he agreed with the decision of the court in Defense Language Institute,
Presidio of Monterey, California v. FLRA, 767 F.2d 1398 (9th Cir. 1985),
denying enforcement of National Federation of Federal Employees, Local
1263 and Defense Language Institute, Presidio of Monterey, California,
14 FLRA 761 (1984). Specifically, he held that the grievance was
foreclosed by management's right under section 7106(a)(2)(B) of the
Statute to make determinations with respect to contracting out and by
the provisions of OMB Circular A-76.
III. EXCEPTION
In its exception the Union essentially contends that by finding the
grievance not to be arbitrable, the award is contrary to the Statute.
IV. ANALYSIS AND CONCLUSIONS
We agree with the Union. In a series of recent decisions, we again
addressed the issue of whether a grievance claiming that a procurement
action failed to comply with applicable procurement law and regulation,
including OMB Circular A-76, was grievable and arbitrable under the
Statute. Citing EEOC, 10 FLRA 3, among other cases, we held that a
grievance claiming that a procurement action failed to comply with
applicable procurement law and regulations is within the broad scope
grievance procedure prescribed by the Statute and is not precluded by
law or regulation, including management's right under section
7106(a)(2)(B) to make determinations with respect to contracting out.
United States Army Communications Command, Fort McClellan and Local No.
1941, American Federation of Government Employees, AFL-CIO, 23 FLRA No.
23 (1986); General Services Administration and America Federation of
Government Employees, AFL-CIO, Council 236, 22 FLRA No. 84 (1986);
Headquarters, 97th Combat Support Group (SAC), Blytheville Air Force
Base, Arkansas and American Federation of Government Employees, AFL-CIO,
Local 2840, 22 FLRA No. 72 (1986). Furthermore, we specifically adhered
to this view while noting that this approach had been rejected by the
court in Defense Language Institute. See Headquarters, 97th Combat
Support Group (SAC), slip op. at 2 n.2.; American Federation of
Government Employees, AFL-CIO, Local 1923 and Department of Health and
Human Services, Office of the Secretary, Office of the General Counsel,
Baltimore, Maryland, 22 FLRA No. 106 (1986), slip op. at 4 n. 2.
Consequently, because the Arbitrator based his award on his view of the
grievance procedure prescribed by the Statute rather than a specific
exclusion from the grievance procedure negotiated by the parties, we
find that his award ruling that the grieva